Thompson v. Holder

• Court: Court of Appeals for the Second Circuit
• Decided: March 3, 2011
• Docket: 08-4840
• Status: Published

Opinion

08-4840-ag Thompson v. Holder 07-3796-ag Luna v. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________________________

August Term, 2009

(Argued: June 15, 2010 Decided: March 3, 2011)

Docket Nos. 07-3796-ag, 08-4840-ag _______________________________

WORKLIS LUNA,

Petitioner,

v.

ERIC H. HOLDER, JR., United States Attorney General,

Respondent. _______________________________

TASMANN ANTHONY THOMPSON,

ERIC H. HOLDER, JR., United States Attorney General,*

CALABRESI, POOLER, and CHIN, Circuit Judges. _______________________________

* Eric H. Holder, Jr., is automatically substituted as the respondent in both of the above- captioned cases pursuant to Federal Rule of Appellate Procedure 43(c)(2). The sole and exclusive means for challenging a final order of removal is to file a petition

for review in a federal court of appeals. If a petition for review is filed more than 30 days after

the order of removal, the court of appeals lacks jurisdiction over the petition. Here, Worklis

Luna and Tasmann Anthony Thompson filed petitions for review after the 30-day deadline,

alleging that their constitutional rights were violated because they were prevented from filing

timely petitions by ineffective assistance of counsel and governmental interference, respectively.

Petitioners argue that the 30-day filing requirement, as applied to them, would violate the

Suspension Clause if it barred them from raising their constitutional claims through a petition for

a writ of habeas corpus or an adequate and effective substitute. We hold that applying the 30-

day filing deadline to Petitioners does not violate the Suspension Clause because the statutory

motion to reopen process as described herein is an adequate and effective substitute for habeas

review. We reach that conclusion based on our further holdings that (1) the statutory motion to

reopen process cannot be unilaterally terminated by the Government and (2) agency denials are

subject to meaningful judicial review. Accordingly, we dismiss as untimely Petitioners’

petitions for review.

WORKLIS LUNA, pro se.

TASMANN ANTHONY THOMPSON, pro se.

CAROL FEDERIGHI, JENNIFER R. KHOURI, and BRENDEN P. HOGAN, Office of Immigration Litigation, U.S. Department of Justice, for Respondent.

JENNIFER CHANG NEWELL (Lee Gelernt and Tanaz Moghadam, on the brief), American Civil Liberties Union, for Amicus Curiae American Civil Liberties Union.

-2- ________________________________

POOLER, Circuit Judge:

The sole and exclusive means for challenging a final order of removal is to file a petition

for review in a federal court of appeals. If a petition for review is filed more than 30 days after

the order of removal, the court of appeals lacks jurisdiction over the petition. Here, Worklis

Luna and Tasmann Anthony Thompson filed petitions for review after the 30-day deadline,

alleging that their constitutional rights were violated because they were prevented from filing

timely petitions by ineffective assistance of counsel and governmental interference, respectively.

Petitioners argue that the 30-day filing requirement, as applied to them, would violate the

Suspension Clause if it barred them from raising their constitutional claims through a petition for

a writ of habeas corpus or an adequate and effective substitute.

We note at the outset that the petitions before us raise important and difficult issues. On

the one hand, Luna and Thompson claim that their efforts to challenge their removal orders have

been impeded by the deprivation of their constitutional rights, including the right to due process

under the Fifth Amendment. Luna, Thompson, and others like them cannot be left with no

forum in which to raise plausible claims of constitutional violations. Hence, the possible

foreclosure of habeas relief at issue here raises legitimate Suspension Clause concerns. On the

other hand, permitting aliens to assert these claims through habeas may allow those with

frivolous claims to delay their removals and inappropriately clog the judicial system. Indeed, in

its treatment of habeas and its substitutes, Congress has expressed concern about the abuse of the

habeas procedure. In approaching Luna and Thompson’s petitions, we have had these two

conflicting points very much in mind. In view of the Government’s concessions and the

-3- structure of the process, we believe that the statutory motion to reopen process before the Board

of Immigration Appeals (the “BIA”), subject to de novo review of legal issues and with equitable

tolling and the removal of the departure bar, permits the BIA to readily sort frivolous claims

from those deserving a day in court, thus vindicating both values to the fullest extent possible.

We hold that applying the 30-day filing deadline to Petitioners does not violate the

Suspension Clause because the statutory motion to reopen process as described herein is an

adequate and effective substitute for habeas review. We reach that conclusion based on our

further holdings that (1) the statutory motion to reopen process cannot be unilaterally terminated

by the Government and (2) agency denials are subject to meaningful judicial review.

Accordingly, we dismiss as untimely Petitioners’ petitions for review.

I.

A.

In September 2007, Thompson, a native and citizen of Jamaica, was charged in a Notice

to Appear with removability pursuant to the Immigration and Nationality Act (the “INA”)

Section 237(a)(2)(A)(ii), based on his convictions for two crimes involving moral turpitude not

arising out of a single scheme of criminal misconduct, and Section 237(a)(2)(A)(iii), based on

his conviction for an aggravated felony. Thompson, appearing pro se before an immigration

judge (“IJ”) in Hartford, Connecticut, requested that the IJ appoint counsel because “this matter

has become complex and the respondent never attended any law school, nor is he an attorney.”

In January 2008, the IJ found him removable on the aggravated felony charge and ordered him

removed to Jamaica. Thompson appealed to the BIA, asserting that he was denied his right to

counsel and that he was innocent of the crimes underlying his convictions. The BIA dismissed

-4- his appeal on April 28, 2008. On August 18, 2008, Thompson filed a motion to reopen, seeking

protection under the Convention Against Torture (the “CAT”). On September 9, 2008, the BIA

denied Thompson’s motion to reopen, concluding that Thompson had failed to establish a prima

facie case for protection under the CAT. [Id. at 1-2]

On October 1, 2008, Thompson filed in this Court a “motion asking for time to appeal”

the BIA’s April 28, 2008 order. The motion was docketed in this Court as a petition for review.

Thompson stated that when the BIA dismissed his appeal, he was detained in the Wyatt

Detention Facility in Central Falls, Rhode Island and was “unable to get [his] legal documents at

this facility[.] ITS [sic] PROHIBITED.” In response, the Government filed a motion to dismiss

the petition for review as untimely.

In March 2009, this Court learned that the Government had removed Thompson to

Jamaica. Two months later, the Government acknowledged that this Court retains jurisdiction

over the petition despite Thompson’s removal. See Nken v. Holder, 129 S. Ct. 1749, 1761

(2009) (“Aliens who are removed may continue to pursue their petitions for review, and those

who prevail can be afforded effective relief by facilitation of their return, along with restoration

of the immigration status they had upon removal.”). The Government, however, maintained that

the petition should be dismissed as untimely.

B.

In December 2006, Luna, a native of the Dominican Republic, was charged in a Notice to

Appear with removability pursuant to INA Section 237(a)(2)(B)(i), based on his conviction for a

controlled substance violation, and Section 237(a)(2)(A)(iii), based on his conviction for an

aggravated felony. In a hearing before an IJ in Napanoch, New York, Luna, appearing pro se,

-5- argued that he was not removable under Section 237 of the INA because he was a citizen of the

United States. Luna argued that he was a dual citizen of the Dominican Republic and the United

States, and that he had derivative U.S. citizenship based on his father’s naturalization. In May

2007, the IJ determined that Luna had not derived U.S. citizenship from his father, that his

removability had been established by clear and convincing evidence, that he was statutorily

ineligible for various forms of relief, and that he had not established a prima facie claim for

deferral of removal under the CAT. Accordingly, the IJ ordered Luna removed to the Dominican

Republic. Luna, detained at the Buffalo Federal Detention Facility in Batavia, New York,

appealed to the BIA through counsel. By an order issued July 20, 2007, the BIA dismissed

Luna’s appeal.

On August 9, 2007, Luna’s attorney sent a letter to Luna’s mother, stating that he did not

believe that he could make an argument in a petition for review that would warrant reversal of

the BIA’s decision. Luna’s attorney also stated that the deadline for filing a petition for review

was August 20, 2007. However, Luna stated that his attorney did not send him a letter and he

did not receive the letter the attorney sent to his mother until August 25, 2007 – five days after

the filing deadline. Nor, Luna says, did his attorney otherwise inform him that he would not file

a petition for review. On September 5, 2007, sixteen days after the filing deadline and eleven

days after allegedly receiving his attorney’s letter, Luna, pro se, petitioned for review of the

BIA’s decision. Luna sought “an enlargement of time to file a petition for review” because of

his former attorney’s “neglect, sudden loss of interest, and giving [Luna the] false impression

that he would submit all the necessary papers and continue to represent [Luna].” The

government moved to dismiss the petition for review as untimely. In response, Luna submitted

-6- his former attorney’s August 9 letter to his mother and asserted that “prior counsel[’s] lack of

proper communication kept petitioner from filing his petition on time.” Luna argued that he

“should have been notified by counsel at his place of detention to make sure that [he] received

the correspondence in a timely manner, which would [have] allow[ed him] to file his petition

within the thirty-day filing deadline.”

C.

In February and August 2009, another panel of this Court ordered the appointment of pro

bono counsel as amicus curiae and directed briefing on the following issue:

[W]hether there is merit to an as-applied Suspension Clause challenge for a petitioner who lacked any reasonable opportunity to file a petition for review during the 30-day filing period because of circumstances created by the government, or because of attorney error, in light of our opinion in Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2008).

The American Civil Liberties Union’s (“ACLU”) Immigrants’ Rights Project was subsequently

appointed as amicus counsel in both appeals.

In its briefs to the Court, the ACLU argued that the 30-day filing deadline would violate

the Suspension Clause if it barred Petitioners from filing a writ of habeas corpus or seeking

adequate and effective relief.

In response, the Government argued that the 30-day deadline to file a petition for review,

as applied to Luna and Thompson, did not raise Suspension Clause concerns because the motion

to reopen process offers constitutionally adequate review. The Government stated that “an alien

has a ‘statutory right’ to file . . . a motion [to reopen]” with the BIA after a final order of removal

is issued. The noncitizen specifically would ask the BIA to reopen proceedings and determine

-7- whether ineffective assistance or governmental interference prevented the noncitizen from filing

a timely petition for review. If so, the BIA would reissue the final order of removal, providing

the noncitizen 30 days from that date to petition for review of the merits of the removal order. If

the BIA denied the motion to reopen, the noncitizen could file a petition for review within 30

days. The Government stated that “the Court’s review of a reopening denial entails de novo

review of any legal (including constitutional) conclusions.” This Court, the Government

concluded (before later “amending” its position), could order the BIA to reissue the final order of

removal if it found that the BIA erroneously denied the motion to reopen.

The ACLU agreed in large part with this approach but argued that, for the motion to

reopen process to be an adequate substitute, (1) the BIA must have the authority to hear such

motions regarding ineffective assistance and governmental interference; (2) removal of a

noncitizen must not terminate such motions; (3) the BIA must not be able to insulate its denial of

a motion to reopen from de novo judicial scrutiny by styling it as discretionary; and (4)

noncitizens should be eligible for equitable tolling when government-created circumstances

prevent them from timely filing a petition for review.

D.

On September 3, 2010, this Court issued an opinion holding that the 30-day deadline did

not violate the Suspension Clause as applied to Petitioners. We held that the REAL ID Act of

2005 did not withdraw habeas jurisdiction over Petitioners’ claims that they were prevented from

filing a timely petition for review by ineffective assistance of counsel or governmental

interference. We transferred the petitions to the district courts in which Petitioners’ removal

-8- proceedings were completed and stayed Luna’s removal pending the receipt of his habeas

petition in district court.

Significantly, in the September 3 opinion, this Court rejected the motion to reopen

process as an adequate and effective substitute for habeas. First, we stated that “[t]he granting of

a stay is discretionary, 8 C.F.R. § 1003.2(f), and [a] motion to reopen is automatically terminated

if the alien is removed while the motion is pending, id. § 1003.2(d).” Slip Op. at 10 n.4 (citing

Xue Yong Zhang v. Holder, 617 F.3d 650, 660 (2d Cir. 2010)). We held that “[a] procedure that

allows the government to unilaterally terminate a petitioner’s claim for relief at any time” is not

an adequate and effective substitute. Id. (citing Boumediene v. Bush, 553 U.S. 723, 765-66

(2008)). Second, we stated that “[t]he BIA’s decision to grant a motion to reopen is purely

discretionary.” Id. (quoting Burger v. Gonzales, 498 F.3d 131, 135 (2d Cir. 2007) (internal

quotation marks omitted)). We held that “[a] mechanism for review that ‘is a wholly

discretionary one’ is ‘an insufficient replacement’ for habeas.” Id. (quoting Boumediene, 553

U.S. at 791-92).

We concluded:

If a petition for review is the “sole and exclusive means” for petitioners to make their claims regarding the timeliness of their petitions for review, and if we are jurisdictionally barred from considering such claims because of the 30-day filing requirement, then we would have to decide whether the 30-day deadline, as applied to petitioners, would constitute a suspension of the writ of habeas corpus. Because we conclude that the REAL ID Act can be construed to preserve habeas jurisdiction over petitioners’ claims, however, we need not decide that question.

Slip Op. at 11-12.

-9- Shortly after the opinion was issued, we granted the Government’s request to recall the

mandate, ordered the opinion to be withdrawn, and requested supplemental briefing on whether

the statutory motion to reopen process is an adequate and effective substitute for habeas. Our

September 3 opinion failed to analyze the statutory motion to reopen process, which is part of

the Immigration and Nationality Act (“INA”). Rather, it referred only to the sua sponte motion

to reopen process, which is “a creature of regulations promulgated by the Attorney General.”

Xue Yong Zhang, 617 F.3d at 664. The Government argued that the September 3 opinion

“ignore[d] that an alien has a ‘statutory right’ to file [a motion to reopen].” Further, the

Government stated that “the Court’s review of a reopening denial entails de novo review of any

legal (including constitutional) conclusions.” As explained below, we agree with the

Government on these two points. Further, we adhere to our previous holding that “[i]f

petitioners lack a forum in which to raise such [ineffective assistance of counsel and government

interference] claims, then we are confronted squarely with the ‘serious constitutional questions’

raised by the Supreme Court in [INS v.] St. Cyr, [533 U.S. 289, 315 (2001)].” Slip Op. at 11.

Therefore, we must decide whether the statutory motion to reopen process is an adequate and

effective substitute for habeas.

II.

As an initial matter, the Government requests that we deny Petitioners’ petitions for

review on futility grounds. The Government asserts that we need not decide whether the 30-day

filing requirement, as applied, violates the Suspension Clause because even if Petitioners file

timely petitions for review of their final orders of removal, such petitions would be futile. The

Government argues that Petitioners would be unable to raise in a timely petition for review a

colorable issue over which this Court has jurisdiction.

-10- Dismissal on futility grounds is appropriate only if “there is no realistic possibility” of

success. See, e.g., Alam v. Gonzales, 438 F.3d 184, 187 (2d Cir. 2006) (quoting Cao He Lin v.

U.S. DOJ, 428 F.3d 391, 401 (2d Cir. 2005)). We will not “‘convert judicial review of agency

action into a ping-pong game’” if we are certain that further action “‘would be an idle and

useless formality.’” Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)).

Nor, however, will we prevent a petitioner from filing a petition for review that has a “realistic

possibility” of success, even if we believe the probability of success is slight. If a petitioner has

a plausible claim for relief, dismissal on futility grounds is inappropriate.

Here, both Petitioners are aggravated felons. Therefore, in a petition for review

challenging Petitioners’ final orders of removal, we would have jurisdiction to consider only

“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C)-(D). Petitioners, who

currently are seeking the opportunity to file such a petition, have not yet detailed the claims they

would raise in a petition for review. Nor is it their burden to inform us of such claims in

advance. Because the Government raises the futility argument, it is the Government’s burden to

show that “there is no realistic possibility” that Petitioners could gain relief via a petition for

review. See Alam, 438 F.3d at 187. Petitioners, of course, may seek to rebut the Government’s

futility argument by describing the claims they could bring in a subsequent petition for review,

but they are not required to do so.

We conclude that neither Thompson nor Luna lacks any realistic possibility of gaining

relief from a timely petition for review. Thompson preserved his right to argue that, in this case,

he was denied a right to counsel under the Fifth Amendment’s Due Process Clause. He raised

the issue before and during his IJ hearing and raised the issue on appeal to the BIA. Thompson

argued that he “wouldn’t be able to represent himself pro-se in [this] matter” because “this

-11- matter has become complex and [he] never attended any law school, nor is he an attorney.”

Although a person in removal proceedings enjoys a right to due process under the Fifth

Amendment, see, e.g., Jian Yun Zheng v. U.S. DOJ, 409 F.3d 43, 46 (2d Cir. 2005), our case law

leaves open whether there are some circumstances in which such a right is violated when the

person’s request for appointed counsel in a removal proceeding is denied. Although we do not

know what specific arguments Thompson believes a lawyer could have made that would have

raised doubt about the propriety of finding him removable as an aggravated felon, at this stage of

the litigation it remains the Government’s burden to convince us that no arguments with a

realistic possibility of success exist. The Government failed to meet this burden. In sum, we

have jurisdiction to review such a Fifth Amendment due process claim under Section

1252(a)(2)(D) and, on the facts of Thompson’s case, we cannot conclude that “there is no

realistic possibility” that this claim would succeed.

Likewise, Luna does not lack any realistic possibility of success via a petition for review.

Luna, appearing pro se before the IJ, argued that he was a citizen through the naturalization of

his father. However, for his appeal to the BIA Luna hired an attorney who failed to raise this

argument. As we have held, “in order to preserve an issue for review by this Court, the

petitioner must not only raise it before the BIA, but do so with specificity.” Brito v. Mukasey,

521 F.3d 160, 164 (2d Cir. 2008). Luna did not exhaust review of that issue. However, we do

not lack jurisdiction to hear such arguments and may hear them if the Government does not raise

an exhaustion defense. Lin Zhong v. U.S. DOJ, 480 F.3d 104, 120 (2d Cir. 2007). Thus far, the

Government has not raised the issue. In addition, given his attorney’s conduct, Luna has a

plausible claim that his counsel was ineffective during the BIA proceedings, which is a question

that we have jurisdiction to review in a petition to review. Luna, of course, would need to raise

-12- that argument with the BIA and fulfill the requirements of Matter of Lozada, 19 I. & N. Dec. 637

(B.I.A. 1988), but we need not decide whether the BIA would deny equitable tolling to raise the

ineffectiveness issue, because Luna has a plausible argument that he was diligent. Forty-six days

after the final order of removal (and 11 days after allegedly learning his attorney would not

appeal), Luna filed a petition to appeal based on his counsel’s ineffective assistance. Under

these circumstances, we cannot conclude that “there is no realistic possibility” that Luna would

succeed in a petition for review challenging his final order of removal.

In sum, we reject the Government’s request that we deny Petitioners’ petitions for review

on futility grounds. Therefore, we proceed to determine whether the 30-day deadline for filing a

petition for review violates the Suspension Clause as applied to Petitioners.

III.

Under the INA, “[a] petition for review must be filed not later than 30 days after the date

of the final order of removal.” 8 U.S.C. § 1252(b)(1). This 30-day filing requirement “is

jurisdictional and is not subject to equitable tolling.” Ruiz-Martinez, 516 F.3d at 105-06 (citing

Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir. 2001)). In addition, a petition for review is the

exclusive means available for challenging a final order of removal. 8 U.S.C. § 1252(a)(5),

(b)(9). In Ruiz-Martinez, we held that the provisions of the REAL ID Act eliminating habeas

jurisdiction over final orders of removal, combined with the 30-day deadline, did not facially

violate the Suspension Clause of the U.S. Constitution. 516 F.3d at 105-06. We reasoned that

the 30-day period gave aliens a “reasonable opportunity” to seek judicial review and thus we

concluded that the petition to review process was an adequate and effective substitute for habeas

review. Id. at 105-06, 114-17.

-13- However, Ruiz-Martinez did not rule out the possibility that the 30-day deadline could

amount to a suspension of the writ as applied to an individual petitioner. Here, Petitioners, who

filed untimely petitions for review, argue that the 30-day filing requirement violates the

Suspension Clause when a petitioner misses the deadline because of ineffective assistance of

counsel or governmental interference. In these circumstances, Petitioners contend, there is no

reasonable opportunity to seek meaningful judicial review.

IV.

The Suspension Clause of the U.S. Constitution provides that “[t]he Privilege of the Writ

of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the

public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2. “Because of that Clause, some

judicial intervention in deportation cases is unquestionably required by the Constitution.” St.

Cyr, 533 U.S. at 300 (internal quotation marks omitted). However, “‘the substitution of a

collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s

detention does not constitute a suspension of the writ of habeas corpus.’” Ruiz-Martinez, 516

F.3d at 114 (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)); Boumediene, 553 U.S. at 771

(“[T]he question becomes whether the statute stripping jurisdiction to issue the writ avoids the

Suspension Clause mandate because Congress has provided adequate substitute procedures for

habeas corpus.”).

Prior to 1996, an alien could challenge a removal order either in a petition for review

filed in the court of appeals or in a petition for a writ of habeas corpus in the district court. See

Ruiz-Martinez, 516 F.3d at 113. Since then, Congress has channeled review of final orders of

removal into the courts of appeals. In 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigration

-14- Responsibility Act (“IIRIRA”), both of which amended the jurisdictional provisions of the INA,

8 U.S.C. §§ 1101 et seq. Among other changes, AEDPA repealed an earlier provision of the

INA that stated that “any alien held in custody pursuant to an order of deportation may obtain

judicial review thereof by habeas corpus proceedings,” § 1105a(a)(10) (1994) (repealed 1996).

IIRIRA provided for judicial review of orders of removal, § 1252(a)(1) (2000), and, rejecting the

existing dual tracks of review of orders of removal in habeas courts and courts of appeals,

consolidated all “[j]udicial review of all questions of law and fact . . . arising from” removal

proceedings into one action, a petition for review in the courts of appeals, § 1252(b)(9) (2000).

IIRIRA required that a petition for review be filed within 30 days after the date of the final order

of removal. § 1252(b)(1) (2000). Finally, IIRIRA eliminated judicial review of final orders of

removal against noncitizens convicted of certain criminal offenses, including aggravated

felonies. § 1252(a)(2)(C) (2000).

Shortly thereafter, a noncitizen found removable by the BIA because of his conviction for

an aggravated felony filed a habeas petition in the District of Connecticut, raising a purely legal

question regarding the impact of AEDPA and IIRIRA on conduct that occurred before their

enactment. St. Cyr, 533 U.S. at 292-93. The Government argued that AEDPA and IIRIRA

properly divested the district court of jurisdiction to hear the noncitizen’s habeas petition. The

district court, this Court, and the Supreme Court found otherwise. See id. at 293. Reviewing the

historical use of habeas, the Supreme Court found that pure questions of law were within the

scope of habeas review. Id. at 304-05. Thus, “a serious Suspension Clause issue would be

presented if [AEDPA and IIRIRA] withdr[ew] that power from federal judges and provided no

adequate substitute for its exercise.” Id. at 305. To avoid that serious constitutional question,

the Supreme Court, relying on “the longstanding rule requiring a clear statement of

-15- congressional intent to repeal habeas jurisdiction,” id. at 298, held that neither AEDPA nor

IIRIRA had eliminated habeas corpus review over final orders of removal under 28 U.S.C.

§ 2241, id. at 314. The Court noted that “[i]f it were clear that the question of law could be

answered in another judicial forum,” it might accept the Government’s argument that habeas

review was not available. Id.

While the Supreme Court in St. Cyr did not define the exact scope of constitutional

protection required, it said that “at the absolute minimum, the Suspension Clause protects the

writ [of habeas corpus] ‘as it existed in 1789.’” Id. at 301 (quoting Felker v. Turpin, 518 U.S.

651, 663-64 (1996) (footnote omitted)). The Supreme Court did not limit its historical review of

the scope of habeas jurisdiction to issues of statutory construction, but stated that such review

traditionally “encompassed detentions based on errors of law, including the erroneous

application or interpretation of statutes,” id. at 302, challenges to “Executive interpretations of

the immigration laws,” id. at 307, determinations of an alien’s “statutory eligibility for

discretionary relief,” id. at 314 n.38, and “questions of law that arose in the context of

discretionary relief,” id. at 307. See Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315, 327-28 (2d Cir.

2006). Further, the Supreme Court relied in part on a habeas corpus case that “involved the

application and interpretation of a regulation, not a statute.” Id. (citing United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954)) (emphasis omitted).

In response to the Supreme Court’s decision in St. Cyr, Congress passed the REAL ID

Act, again channeling review of removal orders into the courts of appeals. With this Act,

“Congress intended to provide a scheme of judicial review which is an adequate and effective

substitute for habeas corpus.” Id. at 326 (brackets and quotation marks omitted). The Act

explicitly precluded habeas review of most orders of removal. However, to avoid the “serious

-16- constitutional questions” identified by the Supreme Court in St. Cyr, the Act restored judicial

review in the courts of appeals over “constitutional claims or questions of law” for all

noncitizens, including noncitizen criminals who had been barred from seeking judicial review

under IIRIRA. 8 U.S.C. § 1252(a)(2)(D).

This Court has construed “the intent of Congress’s restoration under the REAL ID Act

rubric of ‘constitutional claims or questions of law’ to encompass the same types of issues that

courts traditionally exercised in habeas review over Executive detentions.” Xiao Ji Chen, 471

F.3d at 326-27. As before, “where no jurisdiction-denying provision of the INA is implicated, a

reviewing court . . . [is] presumed to have the authority to consider all questions of law and fact,

including interpretation and application of constitutional and statutory provisions in reviewing a

final order of removal.” Id. at 330 n.8 (emphasis in original) (citations and internal quotation

marks omitted).

Petitioners raise precisely the types of constitutional claims for which habeas review, or

an adequate and effective substitute, is most essential. Luna and Thompson allege that they were

deprived of their right to fundamental fairness under the Due Process Clause of the Fifth

Amendment. Luna alleges that his counsel prevented him from filing a timely petition for

review and argues that his counsel’s conduct was so ineffective that it impinged on the

fundamental fairness of the removal proceeding. See, e.g., Omar v. Mukasey, 517 F.3d 647, 650

(2d Cir. 2008); United States v. Perez, 330 F.3d 97, 101-02 (2d Cir. 2003). Likewise, Thompson

alleges that the government prevented him from filing a timely petition for review, also

-17- impinging on the fundamental fairness of the proceeding. See Boumediene, 553 U.S. at 765-66

(holding that the writ “must not be subject to manipulation by those whose power it is designed

to restrain” (internal quotation marks omitted)); Bounds v. Smith, 430 U.S. 817, 822 (1977)

(“‘[T]he state and its officers may not abridge or impair petitioner’s right to apply to a federal

court for a writ of habeas corpus.’” (quoting Ex parte Hull, 312 U.S. 546, 549 (1941))).

If Petitioners lack a forum in which to raise such claims, then we are confronted squarely

with the “serious constitutional questions” raised by the Supreme Court in St. Cyr, 533 U.S. at

314. However, because we conclude that Congress has provided an adequate and effective

substitute for habeas, the 30-day deadline, as applied to Petitioners, does not violate the

Suspension Clause. Cf. Singh v. Gonzales, 499 F.3d 969, 979-80 (9th Cir. 2007) (finding that

REAL ID Act, as applied, did not violate Suspension Clause because petitioner could seek

habeas relief).

The Government argues that by codifying the motion to reopen process, Congress has

provided a mechanism by which Petitioners can raise their claims that they were prevented by

ineffective assistance or governmental interference from filing timely petitions for review. As

the Government emphasizes, the Supreme Court repeatedly has described the motion to reopen

process as “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of

immigration proceedings.” Kucana v. Holder, 130 S. Ct. 827, 834 (2010) (quoting Dada v.

Mukasey, 554 U.S. 1, 18 (2008)).

Before 1996, aliens involved in immigration proceedings could move to reopen their

proceedings before the BIA. However, the authority for such motions derived solely from

-18- regulations promulgated by the Attorney General. The regulations also provided that a

noncitizen removed from the United States could not file a motion to reopen, and if a noncitizen

was removed from the United States, her motion to reopen would be deemed withdrawn. See 8

C.F.R. § 3.2 (predecessor to 8 C.F.R. § 1003.2(d)). This regulation regarding a noncitizen’s

departure largely paralleled a statutory provision, 8 U.S.C. § 1105a(c) (1962), that barred courts

from exercising jurisdiction over immigration orders when the noncitizen had departed the

country. In addition, Section 1105a “provid[ed] most aliens with an automatic stay of their

removal order while judicial review was pending,” so that an alien who challenged an order of

removal was “typically entitled to remain in the United States for the duration of judicial

review.” Nken, 129 S. Ct. at 1755 (citing § 1105a(a)(3)).

Congress, by enacting IIRIRA, made two important changes to the existing process.

First, Congress codified procedures governing the filing of motions to reopen and provided

noncitizens the right to “file one motion to reopen proceedings under this section.” 8 U.S.C.

§ 1229a(c)(7)(A) (originally designated as 8 U.S.C. § 1229a(c)(6)(A)). For example, a

noncitizen generally can file only one statutory motion to reopen and generally must do so

within 90 days of the final order of removal. § 1229a(c)(7)(A), (C). Those numerosity and

timeliness requirements are not jurisdictional and therefore qualify for equitable tolling if the

petitioner has been diligent. E.g., Jin Bo Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir. 2006)

(finding that BIA erred in denying diligent petitioner’s motion to reopen as number- and time-

barred). Second, Congress acted to “allow for more prompt removal” and to restrict the ability

of aliens to remain in this country pending judicial review. Nken, 129 S. Ct. at 1755. Congress

did so by repealing both the statutory bar to judicial review of removal orders when the

noncitizen had departed the country, IIRIRA § 306(b) (repealing 8 U.S.C. § 1105a), and the

-19- presumption of an automatic stay, Nken, 129 S. Ct. at 1755. After IIRIRA, “courts were no

longer prohibited from proceeding with review once an alien departed.” Id.

After Congress enacted IIRIRA, the Attorney General promulgated new regulations.

Among the new regulations, the Attorney General provided for sua sponte motions to reopen and

imposed a bar to BIA review of motions to reopen when a noncitizen had departed the country.

See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,321 (Mar. 6, 1997)

(discussing departure bar regulation currently at 8 C.F.R. § 1003.2(d)).

This Court, and the Supreme Court, have treated statutory motions to reopen differently

from regulatory (i.e., sua sponte) motions to reopen. For example, we have held that Section

1252(a)(2)(B), which eliminates our jurisdiction to review denials of discretionary relief in

removal proceedings, applies to regulatory motions to reopen. Xue Yong Zhang, 617 F.3d at

663-64. Because such decisions are committed to agency discretion, we lack jurisdiction to

review them. However, as this Court and the Supreme Court have held, the same rule does not

apply to statutory motions to reopen. Kucana, 130 S. Ct. at 840. Decisions on such motions are

subject to judicial review via petitions for review under Section 1252. Id.; Jin Bo Zhao, 452

F.3d at 159; accord Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 246 (3d Cir. 2006) (“Implicit in

[the Section 1252(a)(1)] jurisdictional grant is the authority to review the denial of a motion to

reopen any such final order.”).

Similarly, although this Court found that the Attorney General’s departure bar regulation

applied to regulatory motions to reopen, Xue Yong Zhang, 617 F.3d at 663-64, we have not

applied that regulation to statutory motions to reopen, see id. at 654 n.2, 664 (explicitly declining

to decide whether the departure bar regulation applies to statutory motions to reopen).

-20- C.

The Government argues that the 30-day filing deadline does not raise Suspension Clause

concerns because the statutory motion to reopen process is an adequate and effective substitute

for habeas corpus.

1.

“At its historical core, the writ of habeas corpus has served as a means of reviewing the

legality of Executive detention, and it is in that context that its protections have been strongest.”

St. Cyr, 533 U.S. at 301. The Supreme Court has been careful “not to foreclose the possibility

that the protections of the Suspension Clause have expanded along with post-1789 developments

that define the present scope of the writ.” Boumediene, 553 U.S. at 746 (citing St. Cyr, 533 U.S.

at 300-01).

As the Supreme Court has stated, it is “uncontroversial” that the writ of habeas corpus

allows a detainee “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the

erroneous application or interpretation’ of relevant law.” Id. at 779 (quoting St. Cyr, 533 U.S. at

302). A habeas court “must have sufficient authority to conduct a meaningful review of both the

cause for detention and the Executive’s power to detain.” Id. at 783.

Although the Supreme Court has not comprehensively detailed what makes a substitute

for habeas adequate and effective, it has provided guideposts that help us determine this case.

First, in the cases in which the Supreme Court has found a substitute to be adequate and

effective, “the purpose and effect of the [substitute] was to expedite consideration of the

[detainee’s] claims, not to delay or frustrate it.” Id. at 775-76. “When Congress has intended to

replace traditional habeas corpus with habeas-like substitutes, . . . it has granted to the courts

-21- broad remedial powers to secure the historic office of the writ.” Id. at 776-77 (noting that in the

Section 2255 context, Congress has granted to the reviewing court power to “determine the

issues and make findings of fact and conclusions of law” (internal quotation marks omitted)). If

Congress succeeds in creating a procedure that is meaningfully “more limited” than habeas

review, id. at 778, as measured by “the sum total of procedural protections afforded to the

detainee at all stages, direct and collateral,” then that procedure is not an adequate replacement

for habeas, id. at 783. Second, because habeas is “designed to restrain” the Government’s

power, the scope of the substitute procedure must not be “subject to manipulation” by the

Government. Id. at 765-66. Third, a mechanism for review that “is wholly a discretionary one”

is “an insufficient replacement” for habeas. Id. at 791. Fourth, the entity substituting for a

habeas court “must have adequate authority . . . to formulate and issue appropriate orders for

relief,” id. at 787, including “the power to order the conditional release of an individual

unlawfully detained,” id. at 779.

Here, the Government argues that the statutory motion to reopen process is an adequate

and effective substitute for habeas in the context of a noncitizen’s claim that he was prevented

from filing a timely petition for review by ineffective assistance of counsel or governmental

interference.

In broad strokes, the statutory motion to reopen process is as follows: a noncitizen with

such a claim would first file a statutory motion to reopen with the BIA, 8 U.S.C. § 1229a(c)(7),

requesting that the BIA reissue the final order of removal in light of the alleged ineffective

assistance of counsel or governmental interference. If the BIA does so, the noncitizen has a new

30 days to file in this Court a petition for review of the merits of the removal order. Lewis v.

Holder, 625 F.3d 65, 68 (2d Cir. 2010) (per curiam). If the BIA does not reissue the removal

-22- order, the noncitizen has 30 days to petition this Court for review of that decision (but not the

merits of the removal order). See Jin Bo Zhao, 452 F.3d at 159 (reviewing denial of motion to

reopen). If we find no meritorious claim on our review, which will include at least review of

“constitutional claims and questions of law,” 8 U.S.C. § 1252(a)(2)(D), we will affirm the BIA.

If we conclude that the BIA has erred, we may remand or, if appropriate, order the BIA to

reissue the final order of removal. After the removal order is reissued, the noncitizen will have

30 days to petition this Court for review of the merits of the removal order. Lewis, 625 F.3d at

68.

We believe this process, as more fully described below, provides Petitioners with an

adequate and effective substitute for habeas.

2.

Amicus counsel, while conceding that a substitute for habeas could resolve Suspension

Clause concerns, emphasized that if the statutory motion to reopen procedure is to be an

adequate substitute, that process cannot be meaningfully “more limited” than habeas review. See

Boumediene, 553 U.S. at 778, 783. Amicus counsel worried that the BIA could style its

reopening denials as discretionary, eliminating our jurisdiction or reducing our ability “to

conduct a meaningful review” of the BIA’s decision. See id. at 783.

As an initial matter, the BIA has the authority to hear claims that government-created

circumstances prevented an alien from filing a timely petition for review. The Government

acknowledges that the BIA has the authority to reissue a final order of removal if “the

government had impeded Thompson from filing a timely petition for review.” Moreover, the

Government correctly notes that in Matter of Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009), the

-23- Attorney General “reaffirmed his previous determination that the Board [the BIA] had

jurisdiction to review ineffective assistance of counsel claims based on attorney conduct

subsequent to a final order of removal.” We emphasize that this authority, as reflected in

Compean, is essential to our holding. If the Attorney General later withdraws the BIA’s

authority to consider claims that ineffective assistance or governmental interference prevented an

alien from filing a timely petition for review, then the statutory motion to reopen process would

be meaningfully “more limited” than habeas review and therefore an inadequate substitute for

habeas.

Although the BIA has authority to consider such claims regarding ineffective assistance

and government-created circumstances, the statutory motion to reopen process would not be an

adequate substitute for habeas if our review of BIA decisions was meaningfully “more limited”

than it would be on habeas. See Boumediene, 553 U.S. at 783 (stating that, when determining

the adequacy of a habeas substitute, “[w]hat matters is the sum total of procedural protections

afforded to the detainee at all stages, direct and collateral”). The Government does not dispute

this point. Indeed, the Government concedes that BIA denials of statutory motions to reopen are

subject to judicial review to the same extent provided by habeas review.

The Supreme Court has clarified that we have jurisdiction to review denials of statutory

motions to reopen, regardless of how the Attorney General styles such decisions. Kucana, 130

S. Ct. at 840. In addition, we exercise meaningful review of denials of motions to reopen. In

Xiao Ji Chen, we noted that Congress passed the REAL ID Act “intend[ing] to provide a scheme

of judicial review which is an adequate and effective substitute for habeas corpus.” 471 F.3d at

326 (citations and internal quotation marks omitted). Congress’s restoration of review of

constitutional claims and questions of law encompassed review of “the same types of issues that

-24- courts traditionally exercised in habeas review over Executive detentions.” Id. at 326-27. We do

not believe that Congress in the INA intended to limit our authority to review constitutional

claims or questions of law that a petitioner raises after the BIA denies a motion to reopen.

Nothing in the INA supports that interpretation. In fact, the REAL ID Act and its legislative

history indicate that Congress intended circuit courts to review “those issues that were

historically reviewable on habeas.” Id. at 327 n.6 (internal quotation marks omitted). As we

have stated, “where no jurisdiction-denying provision of the INA is implicated, a reviewing

court . . . [is] presumed to have the authority to consider all questions of law and fact, including

interpretation and application of constitutional and statutory provisions in reviewing a final order

of removal.” Id. at 330 n.8 (internal quotation marks omitted). Indeed, we have exercised

review of questions of law and constitutional claims raised in a petition for review of a denied

motion to reopen. E.g., Xue Yong Zhang, 617 F.3d at 660 (legal error); Jin Bo Zhao, 452 F.3d at

159-60 (equitable tolling); Iavorski v. U.S. INS, 232 F.3d 124, 128 (2d Cir. 2000) (same). At

oral argument and in a Rule 28(j) letter to the Court, the Government acknowledged that we

have such authority.

The Government further acknowledged that we review such questions de novo. And we

have done so in numerous cases. E.g., Xue Yong Zhang, 617 F.3d at 660 (legal error reviewed de

novo); Iavorski, 232 F.3d at 128 (“We review the BIA’s conclusions of law de novo.” (citing

Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999))). In sum, our review of denials of

motions to reopen, as Congress intended, “encompass[es] the same types of issues that courts

traditionally exercised in habeas review over Executive detentions,” Xiao Ji Chen, 471 F.3d at

326-27, and the scope of our review, as measured by “the sum total of procedural protections

afforded to the detainee,” is not meaningfully more limited than habeas review, Boumediene, 553

-25- U.S. at 783.

3.

For a statutory motion to reopen to be a constitutionally adequate substitute for habeas, it

must be available to a diligent petitioner. That is, an alien who was prevented by ineffective

assistance of counsel or governmental interference from filing a timely petition for review cannot

also be prevented by the same circumstances from filing a statutory motion to reopen.

Although an alien generally may file only one statutory motion to reopen, 8 U.S.C.

§ 1229a(c)(7)(A), and generally must do so within 90 days of a final order of removal,

§ 1229a(c)(7)(D)(I), neither requirement is jurisdictional. Jin Bo Zhao, 452 F.3d at 157-60;

Iavorski, 232 F.3d at 132-33. As we have held, “the filing deadline for motions to reopen may

be equitably tolled” if the alien “exhibit[s] due diligence in pursuing his claim.” Iavorski, 232

F.3d at 127. Indeed, we have reversed the BIA when, despite the alien’s diligence and plausible

showing of ineffective assistance, the BIA found that a motion to reopen was time- and number-

barred. Jin Bo Zhao, 452 F.3d at 159-60.

In sum, we agree with amicus counsel that for the statutory motion to reopen process to

be an adequate substitute for habeas, aliens must be eligible for equitable tolling when

ineffective assistance of counsel or governmental interference prevent them from timely filing a

petition for review. An alien who files a motion to reopen is entitled to equitable tolling when he

exercises due diligence in filing the motion and shows that he was prevented by ineffective

assistance of counsel or governmental interference from filing the motion on time. See id. If the

BIA denies such equitable tolling, the alien may petition this Court for review of that decision.

Id.

-26- 4.

For a motion to reopen to be a constitutionally adequate substitute for habeas, it cannot

be “subject to manipulation” by the Government. Boumediene, 553 U.S. at 765-66. Amicus

counsel argues that the statutory motion to reopen process would not be an adequate and

effective substitute for habeas if the Government could remove an alien while her motion to

reopen was pending and then deem that removal to constitute a “withdrawal” of the motion. In

particular, amicus counsel points to the Attorney General’s departure bar regulation, which

specifies that removal of a person who has filed a motion to reopen “shall constitute a

withdrawal of such motion.” 8 C.F.R. § 1003.2(d). In response, the Government requests that

we not decide this question until, in this context, the BIA dismisses a motion to reopen based on

the departure bar. However, we cannot avoid the issue. We have an obligation to determine

whether the motion to reopen process is a constitutionally adequate substitute for habeas.

Boumediene, 553 U.S. at 771; Ruiz-Martinez, 516 F.3d at 114.

The BIA has stated that it lacks jurisdiction over motions to reopen when the movant

departs the United States. While the Attorney General’s departure bar regulation, 8 C.F.R.

§ 1003.2(d), could be read to apply to only regulatory (sua sponte) reopenings, the BIA has

declared, albeit in dicta, that the departure bar regulation deprives the BIA of jurisdiction to

consider statutory motions to reopen after the movant’s departure from the United States. Matter

of Armendarez-Mendez, 24 I. & N. Dec. 646, 653-60 (BIA 2008) (criticizing William v.

Gonzales, 499 F.3d 329 (4th Cir. 2007), for finding that departure bar regulation conflicts with

the motion to reopen provision in the INA and therefore the regulation is invalid). We disagree.

As the Supreme Court has held, an administrative agency cannot contract its own

jurisdiction either by regulations or decisions in litigated proceedings. Union Pac. R.R. Co. v.

-27- Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009). The general rule that “when jurisdiction is

conferred, a court may not decline to exercise it . . . . also holds for administrative agencies

directed by Congress to adjudicate particular controversies.” Id. at 590 (citation omitted). In

Union Pacific, the Court found that “Congress vested in the National Railroad Adjustment Board

[NRAB] jurisdiction to adjudicate [certain] grievances of railroad employees,” id., and that

“Congress gave the Board no authority to adopt rules of jurisdictional dimension” regarding the

adjudication of such grievances, id. at 597. The Court concluded that “[b]y refusing to

adjudicate cases on the false premise that it lacked power to hear them, the NRAB panel failed

‘to conform, or confine itself,’ to the jurisdiction Congress gave it.” Id. at 599 (quoting 45

U.S.C. § 153 First (q)).

We hold that the BIA may not contract the jurisdiction that Congress gave it by applying

the departure bar regulation, 8 C.F.R. § 1003.2(d), as suggested by the BIA in

Armendarez-Mendez, to statutory motions to reopen. Congress alone controls the BIA’s

jurisdiction to hear motions to reopen filed under 8 U.S.C. § 1229a(c)(7). Cf. Union Pac., 130 S.

Ct. at 590 (discussing authority of NRAB). “The power to establish jurisdictional bars resides

with Congress,” Iavorski, 232 F.3d at 133, and every indication points to the fact that Congress

did not intend to create a jurisdictional bar for motions to reopen filed by an alien in the United

States who is later removed from the United States. This same logic applies to someone like

Thompson who has been removed before filing his motion to reopen.

Congress, by enacting IIRIRA, codified selected regulations regarding the motion to

reopen process, providing “the BIA jurisdiction to consider [a] motion [to reopen] if it is filed

within ninety days after the removal decision becomes final.” Xue Yong Zhang, 617 F.3d at 663-

64. Congress provided that “[a]n alien may file one motion to reopen proceedings under this

-28- section,” limiting only the period in which to file such motions and the contents of such motions.

8 U.S.C. § 1229a(c)(7) (originally designated as 8 U.S.C. § 1229a(c)(6)). Congress declined to

codify the BIA’s departure bar regulation that applied to regulatory motions to reopen. See id.

Nor did Congress otherwise act to make jurisdiction depend on the alien’s presence in the

United States. Indeed, IIRIRA repealed the earlier statutory bar to judicial review of removal

orders when the alien had departed the country. IIRIRA § 306(b) (repealing 8 U.S.C. § 1105a).

In addition, IIRIRA repealed the automatic stay provision. Nken, 129 S. Ct. at 1755. With these

changes, IIRIRA, which requires the Attorney General to remove aliens subject to a final order

of removal within 90 days of the order, 8 U.S.C. § 1231(a)(1)(A), encourages prompt removal

and speedy government action, while eliminating prior statutory barriers to pursuing relief from

abroad. See Nken, 129 S. Ct. at 1755. In this light, an alien’s right to file a motion to reopen

within 90 days after a final order of removal is not necessarily in tension with the requirement

that removal occur within those same 90 days. As in Iavorski, which found “no indication,

either explicit or implicit, that Congress intended that [the statutory motion to reopen filing

deadline be jurisdictional],” 232 F.3d at 130, we find no indication that Congress intended a

regulation that it pointedly did not codify to be a jurisdictional bar to statutory motions to

reopen.

Nor has Congress indicated since it enacted IIRIRA that an alien’s departure after filing a

motion to reopen should be a jurisdictional bar. In May 2005, Congress enacted the REAL ID

Act. Ruiz-Martinez, 516 F.3d at 104-05. With the REAL ID Act, “Congress intended to provide

a scheme of judicial review which is an adequate and effective substitute for habeas corpus.”

Xiao Ji Chen, 471 F.3d at 326 (brackets and internal quotation marks omitted); see also St. Cyr,

533 U.S. at 299-300 (“[If] ‘fairly possible,’ we are obligated to construe [a challenged] statute to

-29- avoid [Suspension Clause] problems.” (citation omitted)). Although the REAL ID Act repealed

or amended other sections of the INA, it maintained an alien’s statutory right to file a motion to

reopen with the BIA and provided that review of such motions would occur in the courts of

appeals. See Jin Bo Zhao, 452 F.3d at 159 (reviewing denial of motion to reopen after REAL ID

Act). Congress, in enacting the REAL ID Act, provided no indication that an alien’s departure

after filing a motion to reopen is a jurisdictional bar. In addition, in January 2006, Congress

amended Section 1229a to provide relief from the 90-day motion-to-reopen filing deadline for

victims of domestic violence. Pub. L. No. 106-386, § 1506(c), 114 Stat. 1464, 1528 (2000). In

defining who qualifies for this “[s]pecial rule,” Congress required that “the alien [be] physically

present in the United States at the time of filing the motion.” 8 U.S.C. § 1229a(c)(7)(C)(iv)(IV).

For this special rule, Congress explicitly required presence only “at the time of filing the

motion,” not thereafter, and did not include any requirement of physical presence elsewhere in

Section 1229a(c)(7). Congress’s choice to include this limitation in only one small subsection

makes significant its decision to omit such a requirement from the rest of the law, and we should

refrain from reading that limitation into text where Congress has left it out.

In sum, since Congress enacted IIRIRA in 1996, “nothing in the [INA] undergirds a

conclusion that the Board [of Immigration Appeals] lacks ‘jurisdiction’ . . . to issue decisions

that affect the legal rights of departed aliens.” Marin-Rodriguez v. Holder, 612 F.3d 591, 594

(7th Cir. 2010) (citation omitted). Because the BIA’s departure bar regulation “has no roots in

any statutory source and misapprehends the authority delegated to the Board by Congress,” the

BIA must consider an alien’s motion to reopen even if the alien is no longer in the United States.

Pruidze v. Holder, No. 09-3836, --- F.3d ---, 2011 WL 320726, at *1, *3-5 (6th Cir. Feb. 3,

2011). The BIA must exercise its full jurisdiction to adjudicate a statutory motion to reopen by

-30- an alien who is removed or otherwise departs the United States before or after filing the motion.

We decline to decide the validity of the departure bar regulation, 8 C.F.R. § 1003.2(d), in

every possible context. Compare William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)

(invalidating 8 C.F.R. § 1003.2(d) in its entirety), and Coyt v. Holder, 593 F.3d 902, 907 (9th

Cir. 2010) (finding § 1003.2(d) inapplicable to involuntary removals), with Rosillo-Puga v.

Holder, 580 F.3d 1147 (10th Cir. 2009) (upholding § 1003.2(d) in context of a regulatory motion

to reopen), and Ovalles v. Holder, 577 F.3d 288, 295-96 (5th Cir. 2009) (same). Indeed, as this

Court has held, the departure bar regulation terminates a request for which “there was no

statutory basis,” as when the BIA exercises its regulatory (i.e., sua sponte) authority to reopen a

removal proceeding. Xue Yong Zhang, 617 F.3d at 661, 663-64 (noting that the Seventh

Circuit’s “analysis in Marin-Rodriguez does not conflict with ours” because “the BIA’s

understanding of the departure bar as a limitation on its sua sponte jurisdiction, as opposed to its

jurisdiction to consider timely motions to reopen under the INA, cannot be said to be

‘untenable’”).

In sum, the Government’s power to remove aliens subject to a final order of removal

does not make the motion to reopen process “subject to manipulation” by the Government. The

BIA retains jurisdiction over such motions, Marin-Rodriguez, 612 F.3d at 593-94; Pruidze, 2011

WL 320726 at *3-4, and we retain jurisdiction over resulting appeals, if timely, Xue Yong Zhang,

617 F.3d at 657. However, we cannot contemplate every way in which the motion to reopen

process might operate in the future. We emphasize that because the writ of habeas corpus is

“designed to restrain” the Government’s power, the Government must ensure that the motion to

reopen process remains an adequate and effective substitute for habeas. See Boumediene, 553

U.S. at 765-66.

-31- 5.

Although the BIA cannot contract its jurisdiction to hear statutory motions to reopen, see

supra Section V.C.4, such a mechanism for review would be “an insufficient replacement” for

habeas if it were “wholly a discretionary” mechanism, Boumediene, 553 U.S. at 791. Statutory

motions to reopen, however, are authorized by the INA and are not wholly discretionary. 8

U.S.C. § 1229a(c)(7)(A). The statutory motion to reopen process is “an ‘important safeguard’

intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana, 130

S. Ct. at 834 (quoting Dada, 554 U.S. at 18).

On petitions for review of denied motions to reopen, we review de novo constitutional

claims and questions of law. See supra Section V.C.2. In addition, a failure to consider facts

relevant to the motion to reopen is, as a matter of law, reversible error. Ping Chen v. U.S. Att’y

Gen., 502 F.3d 73, 75 (2d Cir. 2007) (per curiam). Further, in motion-to-reopen appeals that do

not fall within the REAL ID Act’s jurisdiction-stripping provisions, we review the factfinding

below for abuse of discretion. Iavorski, 232 F.3d at 128. Although statements in some of our

cases mention only the abuse of discretion standard, see, e.g., Jian Yun Zheng v. U.S. DOJ, 409

F.3d 43, 45 (2d Cir. 2005), the Government is correct that the abuse of discretion standard

applies to our review of BIA or IJ factfinding, not to constitutional claims and questions of law.

Indeed, even in Jian Yun Zheng, the Court first decided a necessary legal issue de novo, see id. at

46-47 (regarding when to review BIA’s ineffectiveness of counsel decisions), and then reviewed

whether the BIA abused its discretion in finding certain facts, see id. at 47-48. The regulatory

(i.e., sua sponte) motion to reopen process, which assuredly is wholly discretionary, see Xue

Yong Zhang, 617 F.3d at 663-64, must not be confused with the statutory motion to reopen

process, which is not wholly discretionary.

-32- 6.

Lastly, this Court, on a petition for review of a denied motion to reopen, “must have

adequate authority . . . to formulate and issue appropriate orders for relief.” Boumediene, 553

U.S. at 787. For a diligent petitioner who proves she was prevented from filing a timely petition

for review by ineffective assistance or governmental interference, the appropriate relief, as the

Government agrees, ultimately is a reissuance of the order of removal. If the BIA considers the

issues, errs on a ground that is not “primarily committed to the BIA’s discretion,” and refuses to

reissue the final order of removal, this Court must have the authority to order reissuance if the

motion to reopen process is to be an adequate and effective substitute for habeas. The

Government argued at length in its supplemental brief, before altering its position in its second

supplemental brief, that this Court has the authority to direct the BIA to reissue a final order of

removal. See, e.g., Dearinger v. Reno, 232 F.3d 1042 (9th Cir. 2000) (requiring the government

to reenter the BIA’s order and restart the 30-day filing period). We agree that the Court has such

authority.

The All Writs Act empowers the Court to “issue all writs necessary or appropriate in aid

of [its] respective jurisdiction[] and agreeable to the usages and principles of law.” 28 U.S.C.

§ 1651(a). As the Supreme Court has held, “Congress’s failure expressly to confer the authority

[to issue a writ] in a statute allowing appellate review should not be taken as an implicit denial of

that power.” Nken, 129 S. Ct. at 1756. We leave to individual cases to determine when such a

writ would be appropriate.

However, for the purpose of our inquiry into the constitutional adequacy of the statutory

motion to reopen process, we find that, at a minimum, this Court has inherent authority to direct

the BIA to reissue an order of removal. Federal courts have “inherent authority to protect their

-33- proceedings and judgments in the course of discharging their traditional responsibilities.” Degen

v. United States, 517 U.S. 820, 823 (1996). In immigration cases, we have exercised such

inherent authority to grant remedies when we had jurisdiction and Congress had not provided

“clear direction” limiting our inherent powers. Mapp v. Reno, 241 F.3d 221, 227-29 (2d Cir.

2001) (finding authority to grant bail to habeas petitioner because the inherent power to grant

remedies is limited only by “specific statutory provisions,” not “by general attitudes”); see also

Elkimya v. DHS, 484 F.3d 151, 153-54 (2d Cir. 2007) (extending Mapp to petitions for review).

In Elkimya, we permitted detainees to file motions for bail pending this Court’s consideration of

their petitions for review because we had jurisdiction over the petition for review, Congress had

not specifically deprived the Court of authority to issue such remedy, and such remedy was “the

most streamlined and efficient manner” of exercising our inherent authority “to make the petition

for review remedy effective” after the REAL ID Act. Id. at 153-54 (internal quotation marks,

brackets, and ellipsis omitted).

This Court has the authority to direct the BIA to reissue a final order of removal.

Congress has not specifically deprived the court of the authority to direct the BIA to reissue a

final order of removal if this Court grants a petition for review of a denial of a motion to reopen.

Indeed, we believe that Congress envisioned that we would grant such remedies in appropriate

cases. Congress passed the REAL ID Act to “provide a scheme of judicial review which is an

adequate and effective substitute for habeas corpus.” Xiao Ji Chen, 471 F.3d at 326 (brackets

and internal quotation marks omitted). As the Supreme Court has stated, when Congress has

replaced the writ of habeas with an adequate and effective substitute, “it has granted to the courts

broad remedial powers to secure the historic office of the writ.” Boumediene, 553 U.S. at 776-

77. With no specific statutory indication otherwise, we do not believe that Congress granted us

-34- the authority to review denied motions to reopen but denied us the power to effectuate that

review. Moreover, requiring the BIA to reissue a final order of removal, thus providing the alien

a new 30-day period to petition for review of the merits of the order of removal, is the “the most

streamlined and efficient” remedy in the context of the REAL ID Act.1

* * *

In sum, in the context of Luna and Thompson’s appeals, the statutory motion to reopen

process as described herein is an adequate and effective substitute for habeas. We emphasize

that because habeas is “designed to restrain” the Government’s power, the Government must

ensure that the motion to reopen process remains an adequate and effective substitute for habeas.

Boumediene, 553 U.S. at 765-66.

VI.

Having determined that an adequate and effective substitute for habeas review is

available for Luna’s and Thompson’s claims regarding the timeliness of their appeals, we

conclude that the 30-day filing deadline as applied to Luna and Thompson does not violate the

Suspension Clause. Thus, we lack jurisdiction over their petitions for review. Ruiz-Martinez,

516 F.3d at 105-06. Consistent with this opinion, Luna and Thompson may file motions to

1 To avoid any confusion, we note that a reviewing court ordinarily should remand rather than decide a matter that (1) is primarily committed to the BIA’s discretion and (2) has not yet been considered by the BIA. INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); see also Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (per curiam). However, that rule does not apply if the two conditions are not present. E.g., Shi Liang Lin v. U.S. DOJ, 494 F.3d 296, 313 n.15 (2d Cir. 2007) (en banc) (declining to remand because the question was not committed to the BIA’s discretion and the BIA “had ample opportunity” to consider the question “in the first instance”). Because such a determination depends on a case’s particular facts, we do not attempt to list the situations in which a remand would (or would not) be appropriate.

-35- reopen with the BIA, requesting equitable tolling and ultimately reissuance of the final orders of

removal.2

CONCLUSION

For the foregoing reasons, Thompson and Luna’s petitions for review are DISMISSED.

2 We express no opinion on the merits of such motions or the diligence of Petitioners. However, given the uncertainty about whether the statutory motion to reopen process was an adequate and effective substitute for habeas, as reflected in our earlier opinion, it would seem harsh to charge these pro se Petitioners, who lacked the benefit of the present opinion, with lack of diligence if they can show that they diligently filed petitions for review with this Court.

-36-